United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2011 Decided April 22, 2011

No. 10-3006

UNITED STATES OF AMERICA,

APPELLANT

v.

PAUL ALVIN SLOUGH, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00360)

Demetra Lambros, Attorney, U.S. Department of Justice, 

argued the cause for appellant. With her on the briefs were 

Lanny A. Breuer, Assistant Attorney General, and Joseph N. 

Kaster, Trial Attorney. Roy W. McLeese III, Assistant U.S. 

Attorney, entered an appearance.

Bruce C. Bishop argued the cause for appellees. With 

him on the brief were Mark J. Hulkower, Brian M. Heberlig, 

Thomas G. Connolly, Christopher J. Wright, Timothy J. 

Simeone, William Coffield, Steven J. McCool, David 

Schertler, Danny C. Onorato and Lisa Hertzer Schertler.
2

Before: GINSBURG and GARLAND, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: The district court 

dismissed an indictment against the five defendants on the 

ground that the evidence presented to the grand jury, and 

indeed the decision to prosecute two of the defendants, were 

tainted by statements of the defendants that for purposes of 

this appeal are conceded to have been compelled within the 

meaning of Garrity v. New Jersey, 385 U.S. 493 (1967). We 

reverse and remand as to four of the defendants; the 

government itself moved to dismiss the indictment against 

Nicholas Slatten, without prejudice to possible later reindictment, and the district court’s grant of the motion has 

taken Slatten out of the case for now. United States v. Slough, 

677 F. Supp. 2d 112, 115-116 & n.2 (D.D.C. 2009).

* * *

On September 16, 2007 a car bomb exploded near the 

Izdihar Compound in Baghdad, where a U.S. diplomat was

conferring with Iraqi officials. American security officials 

ordered a team from Blackwater Worldwide to evacuate the 

diplomat to the Green Zone. See U.S. Department of State, 

U.S. Embassy Baghdad, (Draft) Use of Deadly Force Incident 

at Nisur Square—Baghdad: Preliminary Report and Findings, 

Sept. 23, 2007, at 2. Another Blackwater team, Raven 23, 

headed out of the Green Zone to block traffic at the Nisur 

Square traffic circle and thus assure the diplomat’s safe 

passage back. (In fact, because a checkpoint had fortuitously 

been closed, the escort convoy never passed through Nisur 

Square.) Id. Raven 23 positioned its four vehicles on the 
3

south side of the Square and its members started gesturing to 

stop traffic. Shots were fired; the dispute over who fired at 

whom and when is the substantive crux of the criminal case 

underlying this appeal. When the shooting stopped, 14 Iraqi 

civilians were dead and 20 wounded. Slough, 677 F. Supp. 2d 

at 116. 

Within hours of the incident, the Department of State’s 

Diplomatic Security Service (“DSS”) conducted brief 

interviews with each of the 19 members of Raven 23. Id. at 

117. Among the 19 were the five defendants in this case, Paul 

Slough, Nicholas Slatten, Evan Liberty, Dustin Heard and 

Donald Ball. [

Redacted.

]

*

On September 18, 2007, two days after the incident, all 

Raven 23 members submitted sworn written statements to the 

State Department, using a form that included a guarantee that 

the statement and the information or evidence derived 

therefrom would not be used in a criminal proceeding against 

the signer. Slough, 677 F. Supp. 2d at 118-19. The 

government conceded before the district court that under 

Garrity the September 18 statements must be treated as 

 

 * We have redacted material that on the parties' view might 

spread “taint” from statements of defendants that are deemed 

compelled for purposes of this case, or the release of which would 

disclose witnesses’ grand jury testimony, except to the extent 

hitherto disclosed elsewhere. The interests protected by the 

redaction should in due course become moot, and we direct the 

parties to notify the court when that occurs.
4

having been compelled; as to the September 16 statements, 

the district court so found and the government does not appeal 

that finding.1

The incident almost immediately became the focus of 

media attention in both the United States and Iraq. Some of 

the early articles, published within a few days of the incident,

reported that the Blackwater team was attacked, and purported 

to quote from and otherwise rely on a State Department 

“incident report,” presumably prepared at least in part on the 

basis of the interviews and statements. See, e.g., Adam 

Zagorin & Brian Bennett, Iraq Limits Blackwater’s 

Operations, TIME, Sep. 17, 2007, http://www.time.com/time/

world/article/0,8599,1662586,00.html; Sabrina Tavernise, 

U.S. Contractor Banned by Iraq Over Shootings, N.Y. TIMES, 

Sept. 18, 2007, at A1. These very same articles, however,

also cite Blackwater representatives as making the same 

assertion ([

Redacted.

 ]). See 

Tavernise. The articles also cite Iraqi officials’ statements 

that Blackwater guards used excessive force. Joshua Partlow 

& Walter Pincus, Iraq Bans Security Contractor, WASH.

POST, Sept. 18, 2007, at A1; Sinan Salaheddin, Iraq Plans 

Review of Foreign Security Firm Status, ASSOC. PRESS, Sept. 

18, 2007.

 1

 The defendants were re-interviewed later. Slough, 677 F. 

Supp. 2d at 117-20. But because the defendants invoked only the 

statements of September 16 and September 18 as sources of 

potential taint of the evidence presented to the grand jury, id. at 

120-21, only those statements are relevant to this appeal. 
5

The September 18 written statements were also leaked to 

the media. On September 28, 2007, ABC News reported that 

it had obtained all 19 of the September 18 sworn statements 

and quoted from some of them. See The Blotter, First Images 

of Controversial Blackwater Incident, ABC NEWS, Sept. 28, 

2007, http://blogs.abcnews.com/theblotter/2007/09/exclusivefirst.html. Defendant Slough’s statement was later posted 

online in its entirety, [

Redacted.

 ], and news reports 

by ABC News and the New York Times, among others,

reproduced parts of defendants’ and other team members’ 

September 18 statements. [

Redacted.

 ]

The witnesses that the government relied on most heavily 

before the grand jury—Raven 23 members Adam Frost, 

Matthew Murphy and Mark Mealy—admitted to having read 

these news reports, and it soon became apparent that parts of 

their testimony may have been tainted by their exposure. In 

an effort to safeguard its case, the government decided to 

present a redacted case to a second grand jury, which returned 

an indictment against the defendants, finding that there was 

probable cause to believe that defendants committed (and 

attempted to commit) voluntary manslaughter and weapons 

violations. Slough, 677 F. Supp. 2d at 127-28. 
6

The defendants moved to dismiss the indictment as 

tainted. As required by Kastigar v. United States, 406 U.S. 

441 (1972), the district court held a hearing to determine the 

existence and extent of any taint. It found that exposure to 

defendants’ statements had tainted much of the evidence

presented to the second grand jury—the testimony of security 

guards Frost and Murphy and Iraqi witnesses and victims, 

Frost’s written journal, the factual proffer and debriefing of 

Jeremy Ridgeway (a Raven 23 member who had been indicted 

and had pleaded guilty), and physical evidence recovered by 

DSS from the scene of the crime—and had also tainted the 

prosecutors’ decision to indict defendants Heard and Ball.

The district court thus dismissed the indictment as to all five

defendants. The government now appeals. We review the 

district court’s findings that the government used a 

defendant’s immunized statement for clear error, United 

States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North 

I”), a standard that is met for any finding that was “induced by 

an erroneous view of the law,” United States v. Kilroy, 27 

F.3d 679, 687 (D.C. Cir. 1994) (internal quotations omitted). 

* * *

The Fifth Amendment bars the government from 

compelling self-incriminating testimony from individuals. If 

the government nevertheless decides to require an individual 

to testify, it must offer him immunity that puts him in 

“substantially the same position as if [he] had claimed his 

privilege.” See Kastigar, 406 U.S. at 458-59. In a later 

prosecution of the individual, the government cannot use his

immunized testimony itself or any evidence that was tainted—

substantively derived, “shaped, altered, or affected,” North I, 

910 F.2d at 863—by exposure to the immunized testimony. 

Nor can the government use it to develop investigatory leads, 

to focus an investigation on a witness, Kastigar, 406 U.S. at 
7

460, or to motivate another witness to give incriminating 

testimony. United States v. Rinaldi, 808 F.2d 1579, 1584 n.7 

(D.C. Cir. 1987). In North itself, for example, after North 

gave his immunized testimony former National Security 

Advisor Robert C. McFarlane had requested a second hearing 

before special investigating committees “in order to respond” 

thereto, and we found error in the district court’s having 

admitted McFarlane’s trial testimony without having 

determined “what use—if any” he had made of North’s. 

North I, 910 F.2d at 864. More generally, evidentiary content

(potentially including a witness’s whole testimony, as where 

his very availability was derived from or caused by 

immunized statements) will share the constitutional ban on 

use of the immunized statements. Kilroy, 27 F.3d at 687. 

Below we deal explicitly with situations where evidence’s 

content or availability is derived from both immunized 

statements and independent factors.

In building a case against a defendant who received use 

immunity for his statements, the government must prove, by a 

preponderance of the evidence, that “all of the evidence it 

proposes to use was derived from legitimate independent 

sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406 

U.S. at 461-62, internal quotations omitted). As the district 

court observed, proof that a witness was “never exposed to 

immunized testimony” or that the investigators memorialized 

(or “canned”) a witness’s testimony before exposure, Slough, 

677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872), 

would obviously satisfy the requirement. But a failure by the 

government to make either showing does not end the district 

court’s inquiry. North I requires the court to parse the 

evidence “witness-by-witness” and “if necessary, . . . line-byline and item-by-item,” 910 F.2d at 872, and to “separate the 

wheat of the witnesses’ unspoiled memory from the chaff of 

[the] immunized testimony,” id. at 862. This sifting is 

particularly important in cases where, as here, a witness was 
8

exposed to a defendant’s immunized statement but testifies to 

facts not included in that statement. 

In sifting the record as to taint of the evidence before the 

indicting grand jury, the district court made a number of 

systemic errors based on an erroneous legal analysis. 

First, the district court erred by treating evidence, 

including the testimony of Frost, Murphy, Ridgeway and the 

Iraqi witnesses, and the Frost journal, as single lumps and 

excluding them in their entirety when at the most only some 

portion of the content was tainted—it made no effort to decide 

what parts of the testimony or the journal were free of taint. 

Prima facie, this error applies (for example) to all elements of 

testimony that do not overlap with the content of the 

immunized statements. North I requires the court to segregate 

tainted parts of the evidence from those parts that either could 

not have been tainted (because there is no overlap) or were

shown to be untainted by a preponderance of the evidence. 

910 F.2d at 872. Even in instances where there could be no 

possible claim that the immunized statements caused the 

witness to speak up (as in some variant of the McFarlane 

instance), the district court found that the government had 

failed to fulfill its burden; yet the court never identified what 

the government could have done besides pointing to the 

complete absence of overlap, or why it should have been 

required to show more.

The district court excluded, for example, all of the 

testimony of Frost and Murphy, finding that the two guards

“had been thoroughly immersed” in defendants’ immunized 

statements by virtue of having read news reports about the 

Nisur Square incident. Slough, 677 F. Supp. 2d at 144. But 

Frost’s and Murphy’s grand jury testimony included specific 

recollections with no referent either in defendants’ immunized 

statements or news reports derived therefrom. 
9

[

Redacted.

 ] As 

these elements of Frost’s testimony have no antecedent in the 

immunized statements, they cannot be tainted (unless 

somehow the statements caused Frost’s testimony in some 

subtler way). Similarly, [

Redacted.

 ]. The list goes on, as 

the government points out in its briefs. Appellant Br. at 62-

64; Appellant Reply. Br. at 13 (describing parts of Frost’s and 

Murphy’s testimony not overlapping with the statements); 

Appellant Br. at 89-93 (describing parts of Jeremy 

Ridgeway’s statements that could not have been tainted); 

Appellant Reply Br. at 26-27 (describing parts of Iraqi witness 

testimony that did not overlap with any immunized statements 

that appeared in news reports). We will not catalogue every 

instance of non-overlap here, but North’s mandate that the 

district court parse the record “line-by-line” clearly requires 

such review, not only for the rest of Frost’s and Murphy’s 

testimony, but also for the Iraqi witnesses’ testimony and 

Ridgeway’s proffer and statement.

In United States v. North, 920 F.2d 940 (D.C. Cir. 1990)

(“North II”), we noted that the defendant bears the burden of 

laying “a firm ‘foundation’ resting on more than ‘suspicion’” 

that proffered evidence was tainted by exposure to immunized 

testimony. Id. at 949 & n.9 (quoting from Lawn v. United 

States, 355 U.S. 339, 348-49 (1958)). A witness’s prior 

exposure to immunized statements can hardly be said to meet 

that burden as to completely non-overlapping points—defense 
10

counsel conceded as much at oral argument. See Oral Arg. 

Transcript 54, 56, 58. Of course, defendants may fill that gap 

by submitting additional evidence; again, the McFarlane 

episode in the North case may be a model, though it is worth 

noting that our disposition there left unresolved whether 

McFarlane’s responding to North’s testimony in fact 

constituted a forbidden “use” within the meaning of Kastigar. 

North I, 910 F.2d at 864. 

Second (and closely related), the district court erred by 

failing to conduct a proper independent-source analysis as 

required by Kastigar, 406 U.S. at 460, and Rinaldi, 808 F.2d 

at 1582. In particular, the district court erred by finding that

any evidence responding to allegations that Raven 23 was 

attacked was tainted, even where no information specific to a 

particular defendant was included, and the supposedly tainting 

sources in fact encompassed multiple, equivalent assertions by 

non-defendants. Many of the news reports were based on the 

State Department spot and incident reports, which, in turn, 

were in part based on statements by all 19 guards ([

 Redacted. ]), not simply the five 

defendants’ immunized statements. See, e.g., Zagorin & 

Bennett (citing from the incident report that “the motorcade 

was engaged with small arms fire from several locations” and 

“returned fire”). 

Moreover, the State Department reports were not the only 

sources offered in the news stories to support the claim of [ 

Redacted. ]—the very same articles also cite Blackwater 

representatives as making the claim. There is no suggestion in 

the district court’s opinion that Blackwater management 

learned the specifics of [Redacted.] from the State Department 

reports; [
11

Redacted.

 ] Where two independent 

sources of evidence, one tainted and one not, are possible 

antecedents of particular testimony, the tainted source’s 

presence doesn’t ipso facto establish taint. (Moreover, a 

witness’s testimony need not have any exterior antecedent, 

i.e., any precursor other than the witness’s perceptions of what 

happened.) Speaking of a government decision to pursue a 

line of investigation, for instance, the Second Circuit said, 

“[I]f it appears that that pursuit could have been motivated by 

both tainted and independent factors, the court must determine 

whether the government would have taken the same steps 

‘entirely apart from the motivating effect of the immunized 

testimony.’” United States v. Nanni, 59 F.3d 1425, 1432 (2d 

Cir. 1995) (citing United States v. Biaggi, 909 F.2d 662, 689 

(2d Cir. 1990); Biaggi in turn drew on broader legal sources,

such as those governing claims of dismissal for exercise of 

First Amendment rights, Mt. Healthy City School District 

Board of Education v. Doyle, 429 U.S. 274 (1977)). The 

same principle—a goal of removing any net effect on either 

side—must apply to any circumstance (e.g., a segment of 

testimony, a witness’s decision to speak up) claimed to be an 

effect of immunized testimony. Immunity, properly 

construed, “leaves the witness and the Federal Government in 

substantially the same position as if the witness had claimed 

his privilege.” Kastigar, 406 U.S. at 458-59 (emphasis added, 

internal quotations omitted) (quoting Murphy v. Waterfront 

Comm’n, 378 U.S. 52, 79 (1964)). To preserve that 

symmetry, obviously courts cannot bar the government from 

use of evidence that it would have obtained in the absence of 

the immunized statement. 
12

The district court also found that these early news reports 

tainted Frost’s journal and his testimony when he addressed 

the claim of [ 

Redacted.

 ] (Indeed, when armed guards shoot

a number of people in a crowd, it doesn’t take Hercule Poirot 

to start wondering what the crowd was doing.) The district 

court erred by failing to consider whether Frost’s testimony 

and journal, as well as other evidence challenging the story 

that [ Redacted. ], were more probably than not 

derived from sources other than defendants’ immunized 

statements. 

Third, the district court applied the wrong legal standard 

when it excluded Frost’s journal and his testimony simply 

because the news reports based on some of the immunized 

statements were “a cause” for his writing it. Slough, 677 F. 

Supp. 2d at 151. Defendants cite our language in Hylton to 

the effect that if Hylton’s immunized statements “were a 

cause of [a key witness’s] decision to plead and testify against 

Hylton, [the witness’s] testimony was impermissible even if 

the government had prior knowledge of [the witness’s] role.” 

294 F.3d at 134. But Hylton did not decide that any causal 

role was necessarily fatal. To do so would have been to 

reverse North I’s (and Kastigar’s) references to independent 

sources, as well as Kastigar’s own explicit view that 

immunity, properly applied, “leaves the witness and the 

Federal Government in substantially the same position as if 

the witness had claimed his privilege.” Kastigar, 406 U.S. at 

458-59 (emphasis added, internal quotations omitted). 

Finally, Hylton’s entire focus was on explaining why a 

defendant was correctly asserting ineffective assistance of 

counsel, because of the latter’s failure to make a Kastigar
13

objection, not on resolving the nuances of multiple sources or 

causes. 

Thus, only if the government on remand fails to establish 

by a preponderance that Frost would have written the journal 

or testified in the absence of exposure to defendants’ 

immunized statements would use of the journal and testimony

be barred under Kastigar. Of course, the defendants’ 

communications transmitted to Frost via the media are 

relevant against the government in this analysis only to the 

extent that they actually added to the information flowing

through from non-defendant sources. 

This takes us to a fourth systemic error. To the extent 

that evidence tainted by the impact of one defendant’s 

immunized statements may be found to have accounted for the 

indictment of that defendant, it does not follow that the 

indictment of any other defendant was tainted. The district 

court assumed the contrary. Slough, 677 F. Supp. 2d at 166 & 

n.66. Although the prosecution presented a single indictment 

against all five defendants, each defendant was charged 

individually and therefore the presence, extent and possible 

harmfulness of the taint must be assessed individually. 

Defendants argue that the government proceeded on a 

joint liability theory that would render defendant-bydefendant taint assessment unsuitable. They point to a 

prosecutor’s statement to the grand jury that it was “charging 

[the defendants] jointly, with each of these shootings because 

they’re working together.” Grand Jury Tr., Dec. 2, 2008, PM, 

at 10-11. But in context the reference does not suggest 

government adoption of the broad theory espied by 

defendants. The prosecutor had explained to the grand jury 

that for aider and abettor liability a defendant need not have 

fired a fatal or wounding shot. Even shots that hit no one 

could aid and abet directly harmful shots by making it 
14

“difficult for victims to run that direction to safety.” Grand 

Jury Tr., Nov. 20, 2008, AM, at 16. But guilt was individual: 

a vote to indict required jurors to be satisfied “that there’s 

probable cause that each of the people we’ve 

identified . . . did, in fact, shoot their weapons that day . . . 

[a]nd joined in this, in what happened.”2

* * *

Id. In context it is 

plain that the snippet identified by defendants is no more than 

a reference back to the government’s aider and abettor theory. 

As we noted, the district court found the indictments of 

Heard and Ball independently and fatally tainted on the theory 

that their immunized statements motivated the prosecutor’s 

decision to seek their indictment. Neither Kastigar nor North

states that non-evidentiary uses of immunized statements are 

barred. Kastigar prohibits the use of immunized evidence as 

an “investigatory lead” to other derivative evidence that 

would then be used against the defendant. 406 U.S. at 460. In 

North I, after a substantial review of the various circuits’ 

decisions on the matter, we concluded: “Thus, even assuming 

without deciding that a prosecutor cannot make nonevidentiary use of immunized testimony, in the case before us 

 2 The exact language might suggest that the government led the 

grand jury to believe that shooting, without regard to incoming fire, 

was itself an adequate basis for a manslaughter indictment. But the 

passage quoted was simply the government’s explanation of the 

workings of aider and abettor liability; elsewhere the government 

made clear that firing in self-defense would not qualify. See Grand 

Jury Tr., Dec. 4, 2007, AM, at 11-12 (explaining to the grand jury 

that if it is “objectively reasonable for you to believe that you need 

to use [deadly] force to defend yourself, somebody’s shooting from 

this car, and you apply force to that car, that’s obviously justified 

conduct”).
15

the [Independent Counsel] did not do so.” 910 F.2d at 860. 

We then went on (though under the heading 

“‘Nonevidentiary’ Use,” id. at 856) to rule out the use of 

immunized testimony to refresh the memories of witnesses, 

id. at 860-63. That is, of course, an indirect evidentiary use. 

Here, as the government does not challenge the factual 

finding on the decision to indict, we must assume its 

correctness and are thus forced to resolve the issue left 

unsettled in North I. In the absence of clear Supreme Court or 

D.C. Circuit precedent, North I turned to relevant decisions in 

other circuits for guidance and noted a circuit split: the Third 

and Eight Circuits suggested that Kastigar banned all nonevidentiary uses; the First, Second, Ninth and Eleventh 

Circuits found otherwise. North I, 910 F.2d at 857. Since 

North was decided, the Seventh Circuit has joined the latter 

group, holding that Kastigar is not concerned with “the 

exercise of prosecutorial discretion.” United States v. Cozzi, 

613 F.3d 725, 729 (7th Cir. 2010) (citing a number of postNorth I decisions; internal quotations omitted). In the end, at 

least as to decisions to indict, we join those circuits refusing to 

find such decisions vulnerable on the ground of links to 

immunized statements. The Eleventh Circuit observed in 

United States v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985), 

that such a rule would turn use immunity into transactional 

immunity. That is a bit of an overstatement; after all, 

prosecutors could, by construction of firewalls (along with the 

associated incremental personnel costs), assure that such 

decisions were made without risk of taint. But defendants’ 

proposed rule clearly would entangle the court in what has

hitherto normally been internal prosecutorial decision-making. 

And it would open a new field for courts’ having to make 

complex causal judgments of the sort already required to 

assure clean evidence.
16

Continuing its discussion of non-evidentiary uses, Slough, 

677 F. Supp. 2d at 158-65, the district court also asserted that 

defendants’ September 16 statements must have been useful 

to the prosecution and must have guided the government’s 

investigation, id. at 163, but it never detailed what statements, 

independent of innocent sources, played exactly what role. 

We cannot uphold the judgment of dismissal to the extent that 

it rests on such vague propositions. 

We further note that the district court lumped physical 

evidence collected by the DSS under the non-evidentiary-use 

rubric and found it to be tainted. Slough, 677 F. Supp. 2d at 

164-65. Insofar as physical evidence was presented to the 

grand jury, that classification is surely wrong—if the 

immunized statements led to discovery of physical evidence

that was before the grand jury, it should be analyzed as an 

evidentiary use. As with uses purportedly leading to 

testimony or to the Frost journal, the district court’s judgment 

was subject to the same errors reviewed above as to nonphysical evidence. (We note that especially as to physical 

evidence, but in principle as to all evidence alleged to be 

tainted, the independent sources that might undercut any taint 

would include actual facts on the ground, such as the locations 

of vehicles that were shot and bullet strikes, which would lead 

investigators to look for shell casings from any incoming fire, 

not to mention make inquiries of potential witnesses.) 

If the excluded physical evidence was not presented to 

the grand jury, as the government’s briefs suggest, Appellant

Br. at 117 n. 43; Appellant Reply Br. at 38, then the district 

court’s consideration and exclusion of that evidence appears 

premature. The district court acknowledged as much, noting 

that the “search [for physical evidence that it excluded] may 

have been highly relevant to the criminal case eventually 

brought against the defendants.” Slough, 677 F. Supp. 2d at 

165. To the extent that the court ordered the Kastigar hearing 
17

simply to determine the status of the indictment, it would not 

properly reach the issue of possible use at trial. North II, 910 

F.2d at 947-48. 

Finally, although the district court disapproved of the 

prosecutor Kohl’s explanation to the grand jury that some of 

defendants’ statements were immunized, it did not find that 

mentioning the existence of immunized statements constituted 

a prohibited use under Kastigar. See Slough, 677 F. Supp. 2d 

at 128. As the district court appears not to have relied on 

Kohl’s explanation, we will not rule on the matter. 

* * *

We find that the district court’s findings depend on “an 

erroneous view of the law.” Kilroy, 27 F.3d at 687. We thus 

vacate and remand the case for the court to determine, as to 

each defendant, what evidence—if any—the government 

presented against him that was tainted as to him, and, in the 

case of any such presentation, whether in light of the entire

record the government had shown it to have been harmless 

beyond a reasonable doubt. North I, 910 F.2d at 873. 

So ordered.